Citation Nr: 18147048 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 16-17 837 DATE: November 5, 2018 ORDER Entitlement to an increased rating in excess of 50 percent for migraine headaches is denied. REMANDED Entitlement to an increased rating in excess of 20 percent for lumbar spine degenerative joint disease is remanded. FINDING OF FACT The Veteran has been assigned the maximum rating for his migraine headaches during the entire appeal period. CONCLUSION OF LAW The criteria for entitlement to an increased rating in excess of 50 percent for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.124a, Diagnostic Code (Code) 8100 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1970 to July 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA). After the Veteran filed his May 2013 notice of disagreement (NOD), the Agency of Original Jurisdiction (AOJ) granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the entire period of appeal. See March 2018 rating decision. Thus, remand pursuant to Manlincon v. West, 12 Vet. App. 238 (1999) is not appropriate. Entitlement to an increased rating in excess of 50 percent for migraine headaches. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999). The Veteran’s migraine headaches are currently rated at 50 percent disabling, pursuant to Code 8100. A 50 percent rating is the maximum rating a Veteran can receive pursuant to this Code. See 38 C.F.R. § 4.124a. Accordingly, he is not entitled to a higher rating and this issue must be denied. While the Veteran was originally service-connected for residuals of a head injury, to include headaches, the Board finds that the Veteran’s migraines headaches are not rated by analogy, because he has been diagnosed with migraines headaches, see, e.g., December 2015 VA examination, and is receiving compensation pursuant to the Code specifically for migraines. The Veteran has not alleged that he should be receiving an increased rating for symptoms other than those associated with his migraine headaches. Thus, rating his migraine headaches pursuant to another Code would be improper and he is appropriately rated under Code 8100. See Copeland v. McDonald, 27 Vet. App. 333, 338 (2015) (holding that when a condition is specifically listed in the rating schedule, it may not be rated by analogy). REASONS FOR REMAND Entitlement to an increased rating in excess of 20 percent for lumbar spine degenerative joint disease is remanded. The Veteran has undergone several VA spine examinations, most recently in October 2017. Even though the October 2017 VA examination discusses range of motion measurement results on active and passive motion, none of the VA examinations of record provide such measurement results in weight-bearing and non-weight-bearing circumstances. See Correia v. McDonald, 28 Vet. App. 158, 165-170 (2016). Accordingly, remand is necessary for a new VA examination to obtain such information. The matter is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disability from March 2018 to the present. 2. After the above development is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected spine disability. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements must be included for active and passive motion, and weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel